Keuper v. Unknown Heirs of Mette

Mr. Justice Farmer delivered the opinion of the court: William E. Mette was a single man, and in 1896 he and the Keupers were without means. In that year Mette and George Keuper borrowed $100 from a brother of Mary Keuper and engaged in the saloon business. They ran a lunch stand in connection with the saloon, and Mrs. Keuper did the cooking, helped to tend bar and handled the money. The business not proving profitable, after about one year they moved to another location in South Chicago, where they conducted a saloon and lunch stand until February, 1906. Mrs. ICeuper’s name never appeared in connection with the business but it was conducted in the name of Mette & Keuper. The money invested in the real estate sought to be partitioned was made by the parties in the conduct of their saloon and lunch counter business. Mary Keuper claims she was a full partner with her husband and Mette during all the time the business was conducted in the name of Mette & Keuper; that one-third of the money invested in the real estate was hers, and that her husband and Mette held the title to a one-third interest in the premises in trust for her. This was the contested question at the trial. The evidence upon this question was conflicting. Four daughters of Maty Keuper, her brother, a cousin, and a lawyer who had transacted business for Mette & Keuper and assisted them in investing their money, testified that William E. Mette during his lifetime stated that Mrs. Keuper was a partner with himself and her husband and owned a one-third interest in the partnership. Appellees offered in evidence three leases made by Mette & Keuper for the premises occupied by them in their saloon business in South Chicago. Each of the leases was made to “William E. Mette and George Keuper, (firm of Mette & Keuper,)” and two of them were signed “W. E. Mette, George Keuper,” and one of them was signed “William E. Mette, George Keuper.” They also offered in evidence the business card of the parties. Near the top of the left-hand corner was the name “William E. Mette” and at the right-hand corner “George Keuper.” Below these names was “Mette & Keuper.— Wines, Liquors and Cigars.-—No. 264 92nd Street.” The appellees also offered' in evidence a bill of sale made and signed by William E. Mette and George Keuper in February, 1906, conveying and transferring to Fred Sand and Jacob Ruf their saloon property, stock of wines and liquors, cigars, tobaccos and other property used in the conduct of the business. In none of these documents was Mrs. Keuper’s name mentioned or referred to. The Fred Sand mentioned in the bill of sale testified he was the representative of- the Conrad Seip Brewing Company, and as such had daily transactions with Mette & Keuper during all the time they were located in South Chicago, nearly ten years. He never heard Mrs. Keuper had any interest in the business. The foregoing is the substance of the most material testimony on both sides, aside from the fact that the deeds to the property in controversy were made to William E. Mette and George Keuper. Appellant contends that the burden of proof was upon the appellees to show what particular interest each of the grantees in those deeds took. This is a misapprehension. Where a conveyance is made to two or more parties, without designating the proportion each is to take, the law presumes that they were intended to take equal shares, and they will be considered tenants in common with equal interests. The burden was upon appellant to prove that one-third of the property was bought with the money of Mary Keuper and the title taken and held in trust for her. The proof in such cases must be clear and satisfactory. In Strong v. Messinger, 148 Ill. 431, this court said (p. 433) : “The rule in this State, as elsewhere, in such cases is well established. In Pomeroy’s Equity Jurisprudence (sec. 1040) it is said: ‘Where the trust does not appear on the face of the deed or other instrument of transfer, a resort to parol evidence is indispensable. It is settled by a complete unanimity of decision that such evidence must be clear, strong, unequivocal, unmistakable, and must establish the fact of payment by the alleged beneficiary beyond a doubt. Where the payment of a part, only, is claimed, the evidence must show, in the same clear manlier, the exact portion of the whole price which was paid.’ In Enos v. Hunter, 4 Gilm. 212, it was held: ‘As a general rule, the policy of the law requires that everything which may affect the title to real estate shall be in writing,'—that nothing shall be left to the frailty of human memory or as a temptation to perjury; and whenever this policy of the law has been broken in upon and parol evidence admitted, the courts have been ever careful to examine into every circumstance which may affect the probability of the alleged claim, as the lapse of time, the means of knowledge and circumstances of the witness; and it will not grant the relief sought where the claim has been allowed to lie dormant for an unreasonable length of time or where the evidence is not veiy clear in support of the alleged right, especially where no claim has been set up during the lifetime of the trustee but is ralced up and charged against his heirs, who may not be supposed to know anything about it or be able to defend it, as their ancestor might have done.’ ” See, also, Pickler v. Pickler, 180 Ill. 168; Towle v. Wadsworth, 147 id. 80; Corder v. Corder, 124 id. 229; Mahoney v. Mahoney, 65 id. 406. The master saw the witnesses and heard them testify. In his report he states that the testimony on behalf of appellant was of an unsatisfactory and unconvincing character, and sets out at some length his reasons for so stating. The report of a master in this State is not given the same effect as the verdict of a jury in a case tried by a jury nor the same weight that is given the findings of a chancellor who sees the witnesses and hears them testify, but in a case where the master has seen the witnesses and observed their manner and demeanor while testifying, the finding of facts made by him is entitled to due weight. (Fairbury Union Agricultural Board v. Holly, 169 Ill. 9; Larson v. Glos, 235 id. 584.) No question is made here of the master’s finding being based upon incompetent evidence. In that state of the case, considered in connection with the master’s opportunities of seeing the witnesses and hearing them testify, his report is entitled to some weight. The chancellor agreed with the master and approved his report, and we not only cannot say the decree is contrary to the evidence, but we cannot sajr it was not supported by the weight of the testimony. We think the evidence shows that Mrs. Keuper’s services were valuable and contributed to the earning of the money invested in the property; but this, alone, is not sufficient to make her a partner in the business, and we are of opinion the evidence was insufficient to authorize a finding that Mette and her husband held one-third of the property in trust for her. One of the errors assigned is the allowance of $233.75 for master’s fees, taxing them as costs and ordering them paid by appellant. The master’s charges were itemized by him as follows: Taking evidence: 90 folios at 37^ cents............... $ 33 75 Studying pleadings and exhibits, one-half day; hearing arguments on questions of admissibility of evidence and ruling thereon, one-half day; hearing oral arguments on merits, one-half day; studying transcript of testimony, one day; examining authorities cited in briefs of counsel, one day; formulating report, one, and one-half days; considering objections to report, one-half day; total, five and one-half days.......... 200 00 Total ........................................ $233 75 We think the charge of $200 for ñve and one-half days’ time was excessive and that the court erred in allowing said item in full. The testimony was not voluminous and the questions involved were not intricate or difficult. We have heretofore expressed our views upon the reasonableness of fees to be allowed masters in chancery. (Manowsky v. Stephan, 233 Ill. 409; Wirzbicky v. Dranicki, 235 id. 106.) We are of opinion $100 is reasonable and sufficient compensation for the services of the master for considering the evidence, arguments of counsel and preparing his report, and the court erred in allowing a greater sum for those services. The appellees contend that no objection to the master’s charge for fees was made in the court below and therefore the question cannot be raised in this court upon this appeal. This question was decided otherwise in Wirzbicky v. Dranicki, supra. The decree of the circuit court in all other respects was correct, but for the error in taxing the master’s fees at $233.75 it is reversed and the cause remanded, with directions to tax the master’s fees at $133.75 anfi in aH other• respects re-enter the same decree. Reversed in part and remanded, with directions.